It’s Hard Being Fair

Here’s a lesson we never thought we’d learn from the Ninth U. S. Circuit Court of Appeals: If you can’t figure something out, just ignore it. OK, they didn’t exactly put it that way, but check out a ruling called Center for Policy Analysis on Trade and Health v. Office of the United States Trade Representativein which this question is posed: What’s fair? And the answer is: We don’t know and we’re not going to try to find out. The secondary lesson is that if Congress enacts a law requiring fairness, it means absolutely nothing. Here’s the very first sentence from the ruling: “The ‘fairly balanced’ membership requirement, imposed by the Federal Advisory Committee Act and applied to the Trade Act of 1974, is not reviewable because those statutes provide us with no meaningful standards to apply.” Except the standard of fairness which, apparently, means nothing. OK, fair enough (so to speak). It’s tough figuring out what’s fair. Judges certainly can’t be expected to be experts on fairness. So who does decide what’s fair? This is what the ruling says: “(W)e believe that this determination is a process best left to the executive and legislative branches of government.”Those guys are the experts on fairness. All you fellow cynics out there may now bang your heads against a nearby wall.

HE HAD IT COMING? The following is from a California Court of Appeals ruling called Winfred D. v. Michelin North America, which is about a defective tire allegedly causing a rollover: “At trial, over objection, the trial court permitted defendants to introduce evidence that, while plaintiff was married to his first wife, he had an affair with, and later married, his business partner’s wife; he then had two wives; plaintiff falsely told his second wife, before marrying her, that he had divorced his first wife; he eventually divorced his second wife; and he thereafter had an affair with a third woman, with whom he had two children. The trial court reasoned that this evidence was relevant to plaintiff’s credibility and the cause of the accident.” He had the accident because there were too many wives in the car? For some reason, the appellate court didn’t think the stuff about the wives was relevant to the trial. But I bet there weren’t any sleeping jurors.

DEPARTMENT OF IRONY. The following is excerpted from a book review on Amazon.com: “Not long ago, I read my first Tom Clancy novel (Without Remorse) and thought it was one of the best things I have ever read. My wife had gotten me a copy of “Op-Center: Games of State”. After reading the novel, I really had to wonder if the same author wrote both books.” Wonder no longer. We now know that the Op-Center books were written by a completely different guy but Tom Clancy’s ex-wife would rather you didn’t know that. I know this because the spat between Clancy and the ex-wife made it into a Maryland Court of Appeals ruling, Clancy v. King. It seems the ex-wife is upset that Clancy wants to take his name off the books written by someone else (thereby reducing sales to guys who don’t notice the difference in writing style). I won’t go into detail here – there are 50 pages, including a dissenting opinion, to read here – but there are a couple of things you might want to note. First off, Wikipedia is now a source for judicial precedent. Really. Check out footnote 4 for a definition of “book packaging” from Wikipedia. Wikipedia is evolving into common law. And then check out footnote 27 for a scene from Seinfeld.Seinfeld is evolving into common law.